Horses v. Salazar

745 F.Supp.2d 438

HABITAT FOR HORSES, a Texas non-Profit corporation, American Society for the Prevention of Cruelty to Animals, a New York non-profit corporation, The Cloud Foundation, a Colorado non-profit Corporation, Toni Moore, and Dr. Don Moore, Plaintiffs,

v.Ken SALAZAR, in his official capacity as Secretary, U.S. Department of the Interior, Robert Abbey, in his official capacity As Director, Bureau of Land Management, Kent Walter, in his official capacity as Field Manager, Bureau of Land Management, White River Field Office, Defendants.

No. 10 Civ. 7684(WHP).

United States District Court, S.D. New York.

Oct. 21, 2010.

Bruce A. Wagman, Esq., Schiff Hardin LLP, San Francisco, CA, Thomas P. Battistoni, Esq., Schiff Hardin LLP, New York, NY, for Plaintiffs.Amy A. Barcelo, Esq., Assistant United States Attorney, U.S. Attorney's Office, SDNY, New York, NY, for Defendants.

MEMORANDUM & ORDER

WILLIAM H. PAULEY III, District Judge:

While this Court is accustomed to dealing with bulls and bears on Wall Street, this case turns its attention westward to wild horses in Colorado. Plaintiffs invoke the Wild Free–Roaming Horses and Burros Act of 1971, a statute never previously considered in the Second Circuit. They seek to stop a gather of wild horses underway on public land known as the North Piceance Herd Area.

Plaintiffs Habitat for Horses (“Habitat”), American Society for the Prevention of Cruelty to Animals (“ASPCA”), The Cloud Foundation, Toni Moore, and Dr. Don Moore bring this action pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, against Ken Salazar, Secretary of the Department of the Interior (“DOI”), Robert Abbey, Director of the Bureau of Land Management (“BLM”), and Kent Walter (“Walter”), Field Manager of the BLM White River Field Office. Plaintiffs claim that the BLM's decision to remove wild horses from the North Piceance Herd Area (or “North Piceance”) in Colorado violates the Wild Free–Roaming Horses and Burros Act of 1971 (“Wild Horses Act”), 16 U.S.C. § 1331 et seq., the Information Quality Act (“IQA”), Pub.L. 106–554 § 515, the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., the Federal Land Policy Management Act (“FLPMA”), 43 U.S.C. § 1701 et seq., and regulations promulgated thereunder.

This action has proceeded at breakneck speed. On October 14, 2010, Plaintiffs moved to preliminarily enjoin BLM's North Piceance gather. On October 15, this Court denied Plaintiffs' application for a temporary restraining order that the BLM cease removal of wild horses and return those already removed. On October 16, Plaintiffs renewed their application, premised on the deaths of two horses during gather operations outside North Piceance. On October 17, this Court denied Plaintiffs' renewed application.

On October 20, 2010, this Court held an evidentiary hearing and heard oral argument on Plaintiffs' application for a preliminary injunction. While Defendants objected to venue in this District initially, they withdrew that objection at the conclusion of the evidentiary hearing. (Transcript of Oral Argument dated Oct. 20, 2010 (“Tr.”) at 90.) Thus, this Court need not consider that issue here. For the following reasons, Plaintiffs' application for a preliminary injunction is denied.

BACKGROUND

I. The North Piceance Herd Area

This action centers on the BLM's decision to remove approximately 60 wild horses in the North Piceance Herd Area, a 79,500 acre land expanse located in northwestern Colorado and more than five times larger than Manhattan. (Complaint dated Oct. 7, 2010 (“Compl.”) ¶¶ 56–57; Declaration of Thomas P. Battistoni dated Oct. 14, 2010 (“Battistoni Decl.”) Ex. 2: Environmental Assessment dated July 29, 2010 (“EA”) at 2, 18.) The North Piceance Herd Area is part of the White River Resource Area, which includes the Piceance–East Douglas Herd Management Area (“Piceance East”), the West Douglas Herd Area (“West Douglas”), and other undesignated areas. (Compl. ¶ 57; see EA at 108, Map 1.)

In 1974, the BLM conducted the first census of wild horses residing within the White River Resource Area. (Compl. ¶ 57.) The census counted 146 horses—135 in the area now designated as Piceance East and 9 in the area now designated as West Douglas. No wild horses were found in North Piceance. (Compl. ¶ 57; Declaration of Kent E. Walter dated Oct. 17, 2010 (“Walter Decl.”) ¶ 13.) In 1975, the BLM prepared the White River Resource Area Management Framework Plan to manage the various uses of these vast federal lands. (EA at 7.) That plan included the removal of all wild horses west of Douglas Creek, which included areas later designated as North Piceance and West Douglas. (EA at 7.)

In 1980, the BLM updated the Management Framework Plan (the “1980 Plan”) and selected Piceance East for wild horse management because its topography and resource distribution were most “highly suited to the needs of wild horses.” (Walter Decl. ¶ 14; EA at 8.) Those lands not included in the herd management area were designated as West Douglas and the North Piceance Herd Area. (Walter Decl. ¶ 14.) The 1980 Plan concluded that the BLM “could not maintain a thriving natural ecological balance and multiple-use relationship” in West Douglas and North Piceance. (Walter Decl. ¶ 14.)

On July 1, 1997, the State Director approved the White River Resource Area Management Plan (the “1997 Plan”), which established the land use decision process currently in place. (EA at 8.) The 1997 Plan established a target wild horse population level—known as the appropriate management level (“AML”)—of between 95 and 140 wild horses for Piceance East. (EA at 8; Walter Decl. ¶ 15.) The AML is “the maximum population at which a thriving natural ecological balance would be maintained and to avoid deterioration of the rangeland.” (EA at 33.) The 1997 Plan further concluded that the North Piceance Herd Area would “be managed in the short-term (0–10 years) to provide forage for a herd of 0 to 50 horses.” (EA at 8.) The 1997 Plan set forth that “[t]he long term objective (+10 years)” was “to remove all wild horses from” the North Piceance Herd Area. (EA at 8.)

In 1999, the BLM increased the AML range for Piceance East to between 135 and 235 horses and added a portion of North Piceance to the herd management area. The White River Field Office reaffirmed this AML in 2002. (EA at 8; Battistoni Decl. Ex. 2: Decision Record dated Sept 10, 2010 (“Decision Record”).) The BLM conducted horse gathers in Piceance East in 1999, 2002, and 2006 to prune the population to the AML range of 135 to 235 wild horses. ( See EA at 22.)

II. BLM's 2010 Environmental Assessment

In February and March 2010, the BLM conducted an aerial census of the White River Resource Area. (Battistoni Decl. Ex. 1: Census of Piceance–East Douglas Herd Management Area dated Feb. & Mar. 2010 (“2010 Censes”); EA at 3.) The survey counted 265 horses within Piceance East and 49 horses in the North Piceance Herd Area. (2010 Census at 7; EA at 3, 18, 21.) The Piceance East population exceeded the AML high end by 30 horses and the lower limit by 130 horses. (EA at 3.) BLM best management practices instruct that an aerial census of wild horses can undercount the actual population by as much as 60%. (EA at 3.)

On March 25 and April 1, 2010, the BLM published notices of its intent to develop an Environmental Assessment in preparation for a gather to reduce the population within Piceance East and in the adjacent areas to AML-compliant levels. (EA at 4.) The purpose of the Environmental Assessment was to “disclos [e] and analyz[e] the environmental consequences of gathering excess wild horses,” in compliance with NEPA requirements. (EA at 2.)

On July 28, 2010, the BLM released a preliminary Environmental Assessment to the public and provided 30 days for review and comment in accord with the BLM Washington Office Instruction. (EA at 5.) The BLM received 2,275 comments—including one comment from an officer of The Cloud Foundation but none from Habitat, the ASPCA, Dr. Don Moore, or Toni Moore. (Walker Decl. ¶ 19.)

The 109–page Environmental Assessment considered three alternative courses of action. As required under the Colorado BLM's Standards for Public Health, the Environmental Assessment analyzed and made findings on the consequences of each alternative on five environmental systems: upland soils, riparian systems, plant and animal communities, threatened and endangered species, and water quality. (EA at 16.) The study devoted significant analysis to a gather's effects on the wild horse population, including herd age, sex, and color ratios; distribution; genetics; and population history. (EA at 16–35.) The cumulative analysis area for the study “include[d] [Piceance East] and areas immediately surrounding the areas [sic] including the North Piceance Herd Area.” (EA at 34.)

The White River Field Office endorsed Alternative A, which allowed the BLM to gather all the horses in Piceance East and then release 135 back into that herd management area so that Piceance East's population would be at the AML's low end. (EA at 8–9.) Further, “to comply with 43 CFR 4710.4,” all horses outside Piceance East would be removed unless the BLM determined some could be moved into Piceance East. (EA at 11.) The gather would be conducted by a contractor experienced in the humane capture and handling of wild horses. (EA at 9.) The BLM predicted employing four gather methods: helicopter drive trapping, in which low-flying helicopters steer horses into pre-constructed traps; roping from horseback; water trapping, in which water sources are used to attract horses into traps; and hay trapping, in which hay attracts horses into traps. (EA at 9–11.)

The Environmental Assessment noted that while “[t]here is always the possibility that wild horses will be injured or killed during any phase of the gather and removal operation,” BLM would follow standard operating procedures to “ensure a safe and...